Arizona Court of Appeals Division One holds that Arizona’s public post-secondary schools may not offer resident tuition to students benefiting from the federal Deferred Action for Childhood Arrivals program.

In 2012, the U.S. Department of Homeland Security (DHS) adopted a deferred deportation policy for individuals who entered the United States without authorization as children. This policy is known as Deferred Action for Childhood Arrivals (DACA).

The Maricopa County Community College District (MCCCD) thereafter began allowing DACA recipients to apply for residency-based in-state tuition benefits. The Arizona Attorney General objected, contending that A.R.S. §§ 15-803 and 15-1825 barred MCCCD from offering DACA recipients in-state tuition. Those statutes limit in-state tuition benefits to individuals who are “lawfully present,” with “lawful immigrant status.”

The Attorney General sought declaratory and injunctive relief against MCCCD in superior court. (Two DACA-recipient-students intervened as defendants, asserting constitutional defenses in addition to MCCCD’s statutory arguments.) The superior court ruled against the Attorney General, holding that DACA recipients are “lawfully present” and thus eligible for in-state tuition benefits under the relevant federal and state statutes.

The Court of Appeals, Division One, reversed. The key questions on appeal were (1) whether the Attorney General had standing to sue; (2) whether DACA recipients are “lawfully present” under §§ 15-803 and 15-1825 and thus eligible for in-state tuition benefits; and (3) whether the Attorney General’s interpretation of the Arizona statutes was preempted by federal law or violated the student-intervenors’ right to equal protection.

First, the court found that the Attorney General had standing to sue under A.R.S. § 41-193(A)(2) because the Governor retroactively approved the lawsuit. Highlighting the Governor’s constitutional duty to “take care that the laws be faithfully executed,” the court found that the Attorney General had a legal right to act as the executive’s proxy to enforce Arizona law.

Turning to the statutory question, the court concluded that DACA recipients are not eligible for in-state tuition benefits. The court found that A.R.S. §§ 15-803 and 15-1825 incorporate the meaning of “lawfully present” as used in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 8 U.S.C. § 1623. Because IIRIRA does not define lawful presence, the court looked to another federal statute addressing alien eligibility for public benefits, the Personal Responsibility and Work Opportunity Reconciliation Act (PWORA), 8 U.S.C. § 1621(b).

PWORA provides that certain “qualified aliens” can receive public benefits, while non-qualified aliens who are “not lawfully present” generally may not. The court interpreted PWORA’s language to mean that only qualified aliens are “lawfully present.” Because DACA recipients are not “qualified aliens” under PWORA, the court reasoned that they likewise are not “lawfully present” under IIRIRA and A.R.S. §§ 15-803 and 15-1825.

Finally, the court rejected the student-intervenors’ preemption and equal protection arguments. In a special concurrence, Judge Norris agreed with the majority’s conclusion regarding the equal protection claim, but not its reasoning.